Abstract

Keywords

Environmental governance; hollow environmentalism; adjudication; sustainability; climate change; symbolic laws.

……………………………………………………….

1 Introduction

The South African academic world has experienced remarkable growth in recent decades, making it increasingly rare for many individuals to achieve canonical status in their respective fields. However, one such individual who has arguably attained this level of reverence and significantly impacted on my academic journey is Willemien du Plessis. For me, Willemien du Plessis has been both a mentor and a co-lecturer in our Environmental Law module at North-West University, serving as the linchpin that has sustained my interest in environmental law in the context of South Africa.

Despite Willemien's notable contributions to South African environmental law, 1

* Caiphas Brewsters Soyapi. LLB LLM LLD (NWU). Faculty of Law, North-West University (Potchefstroom Campus), South Africa; Humboldt postdoctoral fellow at the Max Plank Institute for Comparative Public Law and International Law, Heidelberg, Germany. Email: brews.soyapi@nwu.ac.za. ORCID: https://orcid.org/0000-0002-1155-1428. I am grateful for the financial support provided by the Alexander von Humboldt Foundation. I also thank the Max Planck Institute for Comparative Public Law and International Law, whose hosting arrangement enabled this research. Lastly, I thank the anonymous reviewers for their comments and suggestions for improving the paper. All errors remain my own.

1 In addition to having published widely in environmental law, Willemien has also supervised and mentored generations of academics, many of whom are now established names in the field.

However, it is essential to recognise that context matters significantly, especially in the realm of law. 5

5 R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26 para 28, where the famous statement "in law, context is everything" was uttered.

I present my argument in four main sections. Section two begins with a reality check on environmental governance, highlighting that the state is far from a neutral actor. This necessitates a close scrutiny of state decisions. This exploration leads us to the conclusion, detailed in section three, that we stand at a pivotal juncture in environmental governance. In this section I argue that the symbolic nature of our environmental laws (broadly speaking) is such that the lofty ideals they present cannot always be met by the state. This dilemma occasionally places courts in a predicament when deliberating on such matters, risking rendering their judgments mere formalities, or brutum fulmen. Transitioning to section four, I then concur with recent literature that the current era of the climate

crisis demands a more assertive role for courts in adjudication, which in turn hinges on the enhanced accountability of other branches of government. The penultimate section proposes two interconnected strategies to counter the perceived shallowness in the face of climate change: the concepts of sunsetting and substitution. Lest l be accused of being too generic, I want to emphasise that my perspective throughout this discussion maintains a bird's eye overview of the discussion.

2 The reality of environmental governance

2.1 Governing for sustainability

It would be overly simplistic to assume that all our environmental actions can be completely mitigated, yet this should not deter humanity from taking proactive steps to regulate our collective impact on the environment. As the entity entrusted with a monopoly on governance, the state assumes a trusteeship role, 9

9 Various laws in South Africa note that the state is the public trustee of natural resources and of the environment. See, for example, s 3 of the National Water Act 36 of 1998; s 3 of the Mineral and Petroleum Resources Development Act 28 of 2002; s 2(4)(o) of the National Environmental Management Act 107 of 1998 (NEMA); s 3 of the National Environmental Management: Biodiversity Act 10 of 2004.

development should be conducted rather than as an endpoint towards which it is desired that natural systems should evolve". 12

12 Woolley Ecological Governance 71.

At a basic level, and without getting into the finer details, environmental governance in the narrow sense 14

14 The broader dimension of environmental governance encompasses not only the formulation of laws and policies but also the establishment of institutions responsible for governance and enforcement.

Consequently, for governance to operate effectively it relies on the presence of several key elements: a subject and an objective (a specific relationship between them), an intent to drive change, and a social context in which this intent can be realised. 17

17 Glasbergen "Question of Environmental Governance" 2. Glasbergen goes on to discuss the models of environmental governance, which are beyond the scope of this discussion.

space in which we can exist, thrive and carry out our activities. Furthermore, the government has expressed its intent to protect and preserve the deteriorating environmental space, as outlined in section 24 of the Constitution of the Republic of South Africa, 1996, along with other legislative initiatives aimed at environmental conservation. 19

19 See the discussion under section 3 below.

2.2 The state as a non-neutral actor in governance

On a global scale it is evident that the environmental challenges we face have arisen largely from activities conducted in individual states, and in some cases, even actions undertaken by states themselves. This indictment becomes more pronounced when considering that states are institutions that act with intent and authority. Far from being altruistic and without responsibility, states are often implicated in environmentally detrimental actions because they wield significant regulatory power. States possess the capacity to establish and enforce rules, and they have a monopoly on the legitimate use of force, which enhances the enforceability of their regulations more effectively than other institutions. 21

21 Finger "Which Governance for Sustainable Development?" 35. Finger describes it in this way: "[m]ore precisely, industrial development—the root cause of today's ecological problems of global and systemic proportions—is a dynamic process fueled by a combination of (militaristic) values, cheap non-renewable energy, a certain type of (cheap fuel-consuming) technology, and modern institutions, among which the institution of the nation-state plays the most prominent role".

Consequently, the idea that states are merely neutral agents facilitating and providing an operating space for other institutions and peoples is not defensible. At times states actively endorse actions that are evidently

contrary to the principles of conservation or environmental protection. Criticising such practices in the United States of America, Woods contends that

in nearly every statutory scheme, the implementing agency has the authority-or discretion-to permit the very pollution or land destruction that the statutes were designed to prevent. Rather than using their delegated authority to protect crucial resources, nearly all agencies use their statutes as tools to affirmatively sanction destruction of resources by private interests. 22

22 Wood 2009 Environmental Law 54.

An illustrative example of the state's non-neutral role can be seen in the aftermath of the Earthlife Africa Johannesburg v Minister of Environmental Affairs case, 23

23 Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 2 All SA 519 (GP).

environmental governance, and this power dynamic warrants careful consideration. 26

26 Finger "Which Governance for Sustainable Development?" 42. The state has coercive powers which can be used to effect individual or group changes in behavior. See Butt "Law, Governance, and the Ecological Ethos" 53. It is an evident fact that states require networks that can translate their vision for the country into meaningful implementation. This is why governance theory acknowledges that the state is not the exclusive institution responsible for or even best positioned to govern. Non-state actors also play active and sometimes more focussed roles. However, the discussion here is primarily centred on the state.

Consequently, the absence of neutrality is defining in this instance, as it then magnifies the specific role of the government in either facilitating or regressing on environmental governance. 27

27 Finger "Which Governance for Sustainable Development?" 39; Wood 2009 Environmental Law 44; Preston 2019 JEL 407.

3 Governance at a crossroads: hollow environmentalism

3.1 Symbolic laws and policies

Sustainability issues and environmental concerns have become prominent global themes and hot topics. The Sustainable Development Goals 30

30 UN 2015 https://sdgs.un.org/goals. There are 17 goals which "recognize that ending poverty and other deprivations must go hand-in-hand with strategies that improve health and education, reduce inequality, and spur economic growth – all while tackling climate change and working to preserve our oceans and forests".

the Constitution of the Republic of South Africa, which articulates the following:

Everyone has the right-

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that-

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

Despite the existence of elaborate provisions like section 24 in South Africa and globally that protect environmental rights and promote sustainability, environmental destruction persists in various forms. While there are undoubtedly multiple factors contributing to this ongoing issue, one significant reason can be traced back to the conceptualisation and implementation of symbolic laws and policies.

Symbolic laws and policies can share similarities with propaganda in that they often articulate aspirational goals and send specific messages but may not be realistically achievable in practice. They may be designed to create a favourable impression or signal commitment to particular ideals without necessarily providing the means for effective implementation. 34

34 Wang 2018 Environmental Law 702.

essence, it highlights the gap between stated intentions and practical outcomes in environmental governance.

From a policy perspective, reform can also take on a symbolic nature. 37

37 Wang 2018 Environmental Law 710. Wang goes on to state that "[p]articularly in situations of relative uncertainty, symbolic reform can generate public belief in state legitimacy or buy the regime time before public perceptions of state legitimacy begin to suffer. This is reform as persuasion, convincing the public that the state is performing or at least taking steps necessary to achieve performance down the road. At the same time, the reform process can signal competence, commitment to the people, ideology, politico-legal legitimacy, and appeals to nationalism or tradition. The result is that symbolic reform can act as an insurance policy of sorts against the risks of declining functional performance, cushioning the state against the risks of weakening political legitimacy." Also see Newig 2007 Environmental Politics 282, where one hypothesis posed is that pressures within a state influence the creation of symbolic laws and policies.

3.2 Framing a hollow scenario

In a broader context, hollow environmentalism becomes evident when the state enacts progressive laws, such as section 24 and the National

Environmental Management Act (NEMA), along with other related environmental management acts and policies, yet its actions, carried out by its agents, demonstrate a lack of genuine commitment to fully implementing these laws and policies. Criticising such actions can be a challenging task, especially when they are viewed in the light of the complex realities facing a country. 41

41 Writing on s 24 of the Constitution, Anel du Plessis, for example, premises her argument on the fact that the "decision-making practices and the acts of government budgeting, planning, procurement, monitoring, auditing, and so forth may not yet fully be attuned to what the constitutional environmental right demands of public authorities": Du Plessis 2018 SAJHR 193. Also, the competing interests are not always easy to balance. Consider the energy issue, for example: on the one hand, could one legitimately conclude that with the knowledge we now have, the commissioning of new coal-based power stations in South Africa runs foul of the commitment to reduce the country's greenhouse gase emissions and should legitimately be decried? Or should one guard against embellishing the role that precautionary measures (as arguments against coal-based power stations) could have in the face of other pressing socio-economic concerns, especially at a time when the country is mired with heavy load-shedding? These are not simple questions. See further discussion in Ireland and Burton 2018 https://www.africaportal.org/documents/18385/Microsoft_Word_-_ERC_Coal_IPP_Study_Report_Final_290518.docx.pdf.

The main legal provisions at issue in the Deadly Air case were sections 18, 19 and 20 of the National Environmental Management: Air Quality Act (NEM: AQA). 44

44 National Environmental Management: Air Quality Act 39 of 2004 (NEM: AQA).

acceptable. 45

45 Section 18 of NEM: AQA.

4 Adjudicating hollowness in a time of crisis

The discussion thus far highlights the fact that courts inevitably play a crucial role in environmental disputes, particularly when symbolic laws and policies are in question. To this end, and in a narrower sense, the concept of hollow environmentalism can also be applied to environmental judgments, including seemingly progressive ones, that may lack substantive worth. For example, when a court simply implies that a particular situation triggers the application of section 24 of the Constitution without providing a detailed explanation or rationale for how such an application should occur, or when a court asserts that environmental rights are immediately enforceable without adequately substantiating or scaffolding this claim with sufficient legal reasoning, as seen in the case of Trustees for the Time Being of the Groundwork Trust v Minister of Environmental Affairs, 49

49 See for example the findings in the Deadly Air case: Trustees for the Time Being of the Groundwork Trust v Minister of Environmental Affairs (39724/2019) [2022] ZAGPPHC 208 (18 March 2022) para 163. This may indeed be the first instance where s 24 of the Constitution was interpreted as immediately realisable.

positive but lack the necessary legal foundation to withstand critical scrutiny. In essence, while the use of section 24 (or similar provisions) in court decisions is commendable, findings of this kind may ultimately prove hollow because they are vulnerable to criticism and lack the ecological justifications required to sustain the court's decision over the long term. In a broader context, it is essential for the means (i.e. the court's reasoning) to align with the ends (i.e. the court's decision). This alignment could ensure that environmental judgments are grounded in ecological justifications.

The criticism of environmental judgments not being substantively robust is rooted in a specific context, and in countries like South Africa issues such as climate change often expose the tensions between political commitments, the actions taken and environmental imperatives. These tensions routinely lay bare the fractured lines between promise (legal and policies) and delivery. Scholars like Willemien du Plessis argue that South Africa may require an activist court to ensure that the country remains faithful to its commitments. 50

50 Du Plessis 2018 SAJELP 201. When faced with climate and energy issues she asks, "What will the courts have to do?" and concludes that "South Africa needs an activist court – a court that will take climate change and energy efficiency issues, including measures as to how to address mitigation and adaptation, into account."

But there are serious concerns for this adjudicative role, not least because judges are obviously constrained by legislation, their function usually being limited to interpreting and applying such laws. Also, it is arguable that wherever possible courts will attempt to deliver judgments they assume to be enforceable as against either industry or the state, lest their decisions

are rendered impotent. This leads to a yet more worrisome concern, that courts are expected to interpret potentially symbolic laws (which are likely the basis of associated administrative decisions) that were never meant to fulfil the promise for which they were created. 53

53 Newig 2007 Environmental Politics 277.

However, a counterargument to this narrow notion of "hollow environmentalism" in South Africa could point to instances where South African courts have taken an "activist" approach, going beyond existing legal prescripts to deliver judgments that appear to be driven by a strong environmental agenda. A notable example is the Earthlife Africa Johannesburg v Minister of Environmental Affairs case, 57

57 Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 2 All SA 519 (GP) paras 79-88.

do not advance expository justice. The latter is a form of an enhanced judicial role in which courts set norms and standards on specific judicial issues and in their decisions as a way of informing how actors should perform if they are to conform to fundamental values. 59

59 See discussion in Fisher, Scotford and Barritt 2017 MLR 198; Spann 1982 U Pa L Rev 586.

Indeed, ordering the government to conduct a climate impact assessment is a positive step in addressing environmental concerns, but it is argued that more needs to be done to define the substantive and justificatory content of such assessments. As further explored below, the concept of substitution could potentially help fill this gap.

5 Avoiding hollowness in a time of ecological crisis: sunsetting and substitution

The imperative of sidestepping, or at least making a justifiable effort to do so, from the trap of hollow environmentalism is more pressing now than ever, given the looming climate crisis. Tigre's analysis of this crisis contextualises the predicament in these terms: "[s]hould we continue with the same practices where nature is primarily a commodity? Or should we transition towards a new reality, where established concepts are further developed and strengthened to expand protection of natural resources?" 63

63 Tigre 2021 Rutgers Journal of Law and Religion 226. Also see Rockström and Stern "Science, Society and a Sustainable Future" 4; Wood 2009 Environmental Law 54.

crisis, a defining juncture, invites us to contemplate the exact role expected of the law during such a crisis, particularly if we are to avoid hollowness. So, what could be done then? l am of the view that in a country like South Africa, in which there are climate change commitments 64

64 South Africa has even now established a Presidential Climate Commission whose purpose is "to oversee and facilitate a just and equitable transition towards a low-emissions and climate-resilient economy": Presidential Climate Commission date unknown https://www.climatecommission.org.za/about. As a developing country, South Africa's climate targets are obviously lower than those of developing countries. For an overview of the country's Nationally Determined Contribution, see Presidential Climate Commission 2021 https://www.climatecommission.org.za/ publications/south-africas-ndc-targets-for-2025-and-2030.

Sunsetting encapsulates the idea of gradually phasing out activities known to pose unacceptable environmental risks. 65

65 Woolley Ecological Governance 77.

Mantashe is a key decision-maker on activities with considerable ecological ramifications. Such officials should recognise the imperative of adhering to ecologically sensitive behavioural standards. This transformation undoubtedly comes with a price tag and requires the careful navigation between environmentally acceptable and unacceptable activities and modes of functioning. This is where the concept of substitution can play a pivotal role.

Substitution is the idea that when policy decisions are being made, policy makers must prefer pathways that present the least threat to the environment. 70

70 Woolley Ecological Governance y 74.

[w]hen the science is clear as to the possibility of environmental harm …, then caution should take precedence over development, leading either to the preclusion of potentially harmful activities or the formulation and implementation of appropriate mitigation measures. 71

71 Kotzé and Soyapi 2021 JEL 281.

In other words, if one were to use a scaling process, options that are considered to present the greatest harm to the environment would be ranked lower, 72

72 Woolley Ecological Governance 74. Granted, this would happen on a case-by-case basis, but a weighting process is not unheard of. See discussion in Kidd "Reasonableness" 203.

reasonable alternatives to the activity which is the subject of the application and any feasible and reasonable modifications or changes to the activity that may minimise harm to the environment". The High Court in Earthlife Africa Johannesburg v Minister of Environmental Affairs 75

75 Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 2 All SA 519 (GP) para 79.

Consequently, while the decision to employ substitution remains a political one and the evaluation of potentially viable alternatives is also a matter of political choice, such decisions must be thoroughly justified. 76

76 Woolley Ecological Governance 80.

For context, it is important to note that although climate change is not explicitly mentioned in the NEMA, when an activity has climate impacts those impacts must be taken into account. Some argue that these impacts should carry a negative weight in the decision-making process. 81

81 Warnock and Preston 2023 JEL 58. It is now established that climate legislation can either be direct (where there is specific mention) or indirect (where necessary implication requires consideration of climate issues). See Scotford and Minas 2019 RECIEL 69. See further Bell and Fisher 2023 MLR 228, who accept that whether direct or indirect, climate change is an issue that has legal implications, including the interpretation of legislation. I would add here that it has legal implications for policy as well.

In essence, the justificatory process outlined in this context was a deliberate effort to demonstrate proportionality, weighed against necessity, in order to support the decision-making process. Accordingly, as climate litigation continues to gain prominence, it is possible that a time will come when an administrative decision authorising a fossil fuel project is challenged and deemed insufficient due to the failure to consider viable alternatives. Until that point is reached, civil society and litigators must adopt a strategic approach by identifying specific legal and policy objectives (however aspirational or symbolic as they may be) and clearly illustrating how government actions fall short of these objectives. They may also need to explain why certain alternatives are more suitable in a given context. Only through such strategic and well-argued legal and

policy advocacy could courts potentially render judgments that breathe life into what may appear as symbolic laws and actions, thus bringing about meaningful change in environmental governance and the pursuit of sustainability.

6 Concluding reflections

There is a need to be realistic about the environmental issues that confront us. While it is easy to sensationalise the competing issues, such issues often involve interests that extend beyond immediate parties, encompassing future generations and even the well-being of all humanity. If we acknowledge the culpability of human actions in global environmental degradation, we must also recognise the necessity of re-evaluating how governance operates to achieve ecological objectives more effectively.

In my view, due to the anthropocentric focus of our laws, there is an even greater need for environmental governance to prioritise ecological objectives as embedded in environmental laws. This means that concrete changes must be reflected in policy choices and the legal thinking that accompanies decisions arising from environmental disputes. Acknowledging this reality, the most significant risk of hollow environmentalism is that it can create the illusion of action, performance and a commitment to sustainability. Unfortunately, courts may inadvertently contribute to this illusion when they fail to delve into and fully granulate and articulate the essential substance of environmental laws and what precisely this substance requires from states. This is crucial, as legislation imposes specific obligations on regulators and adjudicators. These roles and responsibilities become increasingly critical in times of environmental crisis, as they play a pivotal role in ensuring that environmental laws are not merely symbolic but are translated into meaningful actions and outcomes that address the pressing challenges of our era.

In the final analysis, when examined through the lens of an assessment of alternatives or the exploration of reasonable and viable modifications, substitution could conceivably emerge as a pivotal factor in evaluating the ecological viability of governmental policies or administrative determinations related to activities like coal extraction or oil exploration. This assertion holds true even in situations where, for instance, an energy deficit exists. Moreover, considering that administrative bodies already possess broad discretionary authority, a domain where the courts generally exercise deference, the practice of justification must be

embedded in the framework of judicial review inquiries. In this context the evaluation of alternatives (a process already legally permissible, if not obligatory) should constitute a foundational aspect of these justifications.

Building upon my earlier assertion that states aren't impartial actors and that political pressures are a tangible reality, I am led to the conclusion that administrative bodies cannot be entrusted with full-on independent discretion, solely due to the principle of comity of powers and judicial deference. 82

82 Wood is critical of the whole practice of judicial deference in environmental administrative decisions: "[i]n contrast to the nonadministrative realm of trial practice, where expert opinions are routinely examined for inherent bias,… the deference doctrine precludes courts from examining political motivations or conflicts of interest that may have inappropriately shaped the agencies' scientific conclusions": Wood 2009 Environmental Law 59.

Bibliography

Literature

Bell and Fisher 2023 MLR

Bell J and Fisher E "The Heathrow Case in the Supreme Court: Climate Change Legislation and Administrative Adjudication" 2023 MLR 226-237

Boyd Environmental Rights Revolution

Boyd DR The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (UBC Press Vancouver 2011)

Butt "Law, Governance, and the Ecological Ethos"

Butt D "Law, Governance, and the Ecological Ethos" in Gardiner S and Thompson A (eds) The Oxford Handbook of Environmental Ethics (Oxford University Press New York 2017) 51-61

Collins "Judging the Anthropocene"

Collins L "Judging the Anthropocene: Transformative Adjudication in the Anthropocene Epoch" in Kotzé LJ (ed) Environmental Law and Governance for the Anthropocene (Hart Oxford 2017) 309-328

Du Plessis 2018 SAJHR

Du Plessis A "The Promise of 'Well-being' in Section 24 of the Constitution of South Africa" 2018 SAJHR 191-208

Du Plessis 2018 SAJELP

Du Plessis W "Energy Efficiency: The Progress of Policy, Legislation, and the Role of the Courts in South Africa" 2018 SAJELP 175-203

Finger "Which Governance for Sustainable Development?"

Finger M "Which Governance for Sustainable Development? An Organizational and Institutional Perspective" in Park J, Conca K and Finger M (eds) The Crisis of Global Environmental Governance: Towards a New Political Economy of Sustainability (Routledge Oxon 2008) 34-57

Fisher, Scotford and Barritt 2017 MLR

Fisher E, Scotford E and Barritt E "The Legally Disruptive Nature of Climate Change" 2017 MLR 173-201

French and Kotzé Research Handbook

French D and Kotzé LJ Research Handbook on Law, Governance and Planetary Boundaries (Edward Elgar Cheltenham 2021)

Glasbergen "Question of Environmental Governance"

Glasbergen P "The Question of Environmental Governance" in Glasbergen P (ed) Co-operative Environmental Governance: Public-Private Agreements as a Policy Strategy (Springer Dordrecht 1998) 1-18

Henry, Rockström and Stern Standing Up for a Sustainable World

Henry C, Rockström J and Stern N Standing Up for a Sustainable World: Voices of Change (Edward Elgar Cheltenham 2020)

Kidd "Reasonableness"

Kidd M "Reasonableness" in Quinot G (ed) Administrative Justice in South Africa: An Introduction 2nd ed (Oxford University Press Cape Town 2021) 190-213

Kotzé and Soyapi 2021 JEL

Kotzé LJ and Soyapi CB "African Courts and Principles of International Environmental Law: A Kenyan and South African Case Study" 2021 JEL 257-282

Lemos and Agrawal 2006 Annual Review of Environment and Resources

Lemos MC and Agrawal A "Environmental Governance" 2006 Annual Review of Environment and Resources 297-325

Liebenberg Socio-Economic Rights

Liebenberg S Socio-Economic Rights: Adjudication under a Transformative Constitution (Juta Cape Town 2010)

Newig 2007 Environmental Politics

Newig J "Symbolic Environmental Legislation and Societal Self-Deception" 2007 Environmental Politics 276-296

Paterson "Sustainable Consumption?"

Paterson M "Sustainable Consumption? Legitimation, Regulation, and Environmental Governance" in Park J, Conca K and Finger M (eds) The Crisis of Global Environmental Governance: Towards a New Political Economy of Sustainability (Routledge Oxon 2008) 110-131

Preston 2019 JEL

Preston BJ "The End of Enlightened Environmental Law?" 2019 JEL 399-411

Quinot 2010 CCR

Quinot G "Substantive Reasoning in Administrative-Law Adjudication" 2010 CCR 111-139

Rockström and Stern "Science, Society and a Sustainable Future"

Rockström J and Stern N "Science, Society and a Sustainable Future" in Henry C, Rockström J and Stern N Standing Up for a Sustainable World: Voices of Change (Edward Elgar Cheltenham 2020) 3-9

Scotford and Minas 2019 RECIEL

Scotford E and Minas S "Probing the Hidden Depths of Climate Law: Analysing National Climate Change Legislation" 2019 RECIEL 67-81

Spann 1982 U Pa L Rev

Spann GA "Expository Justice" 1982 U Pa L Rev 585-661

Tigre 2021 Rutgers Journal of Law and Religion

Tigre MA "Exploring the Bedrock for Earth Jurisprudence" 2021 Rutgers Journal of Law and Religion 223-310

Twani and Soyapi 2022 SAJHR

Twani N and Soyapi CB "The Legal Accountability of Local Government in South Africa for the Failure to Deliver Sanitation Services" 2022 SAJHR 92-111

Wang 2018 Environmental Law

Wang A "Symbolic Legitimacy and Chinese Environmental Reform" 2018 Environmental Law 699-760

Warnock and Preston 2023 JEL

Warnock C and Preston BJ "Climate Change, Fundamental Rights, and Statutory Interpretation" 2023 JEL 47-64

Weaver and Kysar 2017 Notre Dame L Rev

Weaver RH and Kysar DA "Courting Disaster: Climate Change and the Adjudication of Catastrophe" 2017 Notre Dame L Rev 295-356

Wood 2009 Environmental Law

Wood MC "Advancing the Sovereign Trust of Government to Safeguard the Environment for Present and Future Generations (Part 1): Ecological Realism and the Need for a Paradigm Shift" 2009 Environmental Law 43-89

Woolley Ecological Governance

Woolley O Ecological Governance: Reappraising Law's Role in Protecting Ecosystem Functionality (Cambridge University Press Cambridge 2014)

Case law

Bangtoo Bros v National Transport Commission 1973 4 SA 667 (N)

Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 2 All SA 519 (GP)

R (on the Application of Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52

R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26

South Durban Community Environmental Alliance v Minister of Forestry, Fisheries and the Environment (17554/2021) [2022] ZAGPPHC 741 (6 October 2022)

Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy 2022 6 SA 589 (ECMk)

Trustees for the Time Being of the Groundwork Trust v Minister of Environmental Affairs (39724/2019) [2022] ZAGPPHC 208 (18 March 2022)

WWF South Africa v Minister of Agriculture, Forestry and Fisheries 2019 2 SA 403 (WCC)

Legislation

Constitution of the Republic of South Africa, 1996

Mineral and Petroleum Resources Development Act 28 of 2002

National Environmental Management Act 107 of 1998

National Environmental Management: Air Quality Act 39 of 2004

National Environmental Management: Biodiversity Act 10 of 2004

National Water Act 36 of 1998

Government publications

GN 1359 in GG 42778 of 18 October 2019

International instruments

Human Rights Council Resolution 48/13 UN Doc A/HRC/RES/48/13 (2021)

UN General Assembly Resolution on the Human Right to A Clean, Healthy and Sustainable Environment UN Doc A/RES/76/300 (2022)

Internet sources

Al Jazeera Staff 2022 https://www.aljazeera.com/news/ 2018/2/20/mapping-africas-natural-resources

Al Jazeera Staff 2022 Mapping Africa's Natural Resources https://www.aljazeera.com/news/2018/2/20/mapping-africas-natural-resources accessed 20 September 2023

Bega 2021 https://mg.co.za/environment/2021-12-14-mantashe-comments-on-objections-to-shell-seismic-survey-astounding/

Bega S 2021 Mantashe Comments on Objections to Shell Seismic Survey "Astounding" https://mg.co.za/environment/2021-12-14-mantashe-comments-on-objections-to-shell-seismic-survey-astounding/ accessed 20 September 2023

Harding 2023 https://www.bbc.com/news/world-africa-65671718#

Harding A 2023 South Africa Load-Shedding: The Roots of Eskom's Power Problem https://www.bbc.com/news/world-africa-65671718# accessed 19 September 2023

Hunter 2023 https://www.news24.com/fin24/economy/breaking-ramaphosa-calls-urgent-cabinet-meeting-to-discuss-new-plan-for-old-coal-power-stations-20230419

Hunter Q 2023 Ramaphosa Calls Urgent Cabinet Meeting to Discuss New Plan for Old Coal Power Stations https://www.news24.com /fin24/economy/breaking-ramaphosa-calls-urgent-cabinet-meeting-to-discuss-new-plan-for-old-coal-power-stations-20230419 accessed 22 April 2023

Ireland and Burton 2018 https://www.africaportal.org/ documents/18385/Microsoft_Word_-_ERC_Coal_IPP_Study_Report_Final_290518.docx.pdf

Ireland G and Burton J 2018 An Assessment of New Coal Plants in South Africa's Electricity Future: The Cost, Emissions and Supply Security Implications of the Coal IPP Programme https://www.africaportal.org/ documents/18385/Microsoft_Word_-_ERC_Coal_IPP_Study_Report_ Final_290518.docx.pdf accessed 12 April 2023

Lund 2019 https://www.ft.com/content/5fb061d4-7a1d-11e9-8b5c-33d0560f039c

Lund H 2019 Why BP Supports a Fast Shift to Low Carbon https://www.ft.com/content/5fb061d4-7a1d-11e9-8b5c-33d0560f039c accessed 2 April 2023

Minister of Environmental Affairs 2018 https://cer.org.za/wp-content/uploads/2018/01/Thabametsi-Appeal-Decision-30-January-2018-2.pdf

Minister of Environmental Affairs 2018 Appeal Decision. Reference: LSA 142346 https://cer.org.za/wp-content/uploads/2018/01/Thabametsi-Appeal-Decision-30-January-2018-2.pdf accessed 12 April 2023

Nyathi 2023 https://mg.co.za/environment/2023-04-20-if-its-not-coal-then-go-for-nuclear-says-energy-department/

Nyathi M 2023 If It's not Coal, then Go for Nuclear, Says Energy Department https://mg.co.za/environment/2023-04-20-if-its-not-coal-then-go-for-nuclear-says-energy-department/ accessed 22 April 2023

OUTA 2017 https://static.pmg.org.za/171018OUTA_report.pdf

Organisation Undoing Tax Abuse 2017 Unplugging Corruption at Eskom https://static.pmg.org.za/171018OUTA_report.pdf accessed 19 September 2023

Presidential Climate Commission date unknown https://www.climate commission.org.za/about

Presidential Climate Commission date unknown About the Presidential Climate Commission https://www.climatecommission.org.za/about accessed 11 April 2023

Presidential Climate Commission 2021 https://www.climate commission.org.za/publications/south-africas-ndc-targets-for-2025-and-2030

Presidential Climate Commission 2021 South Africa's NDC Targets for 2025 and 2030 https://www.climatecommission.org.za/publications/south-africas-ndc-targets-for-2025-and-2030 accessed 20 September 2023

Presidential Climate Commission 2022 https://pccommissionflow.imgix. net/uploads/images/A-Just-Transition-Framework-for-South-Africa-2022.pdf

Presidential Climate Commission 2022 A Framework for a Just Transition in South Africa https://pccommissionflow.imgix.net/uploads/images/A-Just-Transition-Framework-for-South-Africa-2022.pdf accessed 20 September 2023

South African Government 2012 https://www.gov.za/sites/ default/files/Executive%20Summary-NDP%202030%20-%20Our%20future%20-%20make%20it%20work.pdf

South African Government 2012 National Development Plan 2030: Our Future – Make It Work. Executive Summary https://www.gov.za/sites/ default/files/Executive%20Summary-NDP%202030%20-%20Our%20future%20-%20make%20it%20work.pdf accessed 20 September 2023

UN 2015 https://sdgs.un.org/goals

United Nations 2015 17 Goals https://sdgs.un.org/goals accessed 12 March 2023

World Population Review 2023 https://worldpopulationreview.com/country-rankings/wealth-inequality-by-country

World Population Review 2023 Wealth Inequality by Country 2023 https://worldpopulationreview.com/country-rankings/wealth-inequality-by-country accessed 20 September 2023

World Resources Institute 2022 https://www.wri.org/technical-perspectives/5-lessons-south-africas-just-transition-journey

World Resources Institute 2022 5 Lessons from South Africa's Just Transition Journey https://www.wri.org/technical-perspectives/5-lessons-south-africas-just-transition-journey accessed 20 September 2023

List Of Abbreviations